all appropriate inquiries training• all appropriate inquiries often is the first step in a...

January 2007 1

All Appropriate Inquiries Training

U.S. Environmental Protection Agency – Region 9

Los Angeles and Sacramento, California

January 23 and 25, 2007

January 2007 2

IntroductionsIntroductions

Kevin Palaia, P.G. – ICF International• MS - Hydrogeology; BS - Geology/Biology• Licensed Professional Geologist• 12+ years Phase I and Phase II site assessment/remediation

Patricia Overmeyer – U.S. EPA

• EPA Office of Brownfields Cleanup and Redevelopment

• Designated Federal Official for Negotiated Rulemaking Committee

• Managed EPA’s development of the proposed and final AAI rules

Caren Trgovcich – DTSC• Site Mitigation & Brownfields Reuse, Statewide Cleanup Operations • Implementing State programs requiring AAI

January 2007 3

AgendaAgenda –– AAI TrainingAAI Training• 8:30 am Welcome and Introductions• 8:45 am Module 1: Background of the AAI Rule• 9:45 am Module 2: AAI Phase I ESA Requirements• 10:45 am Break• 11:00 am Module 3: Overview of ESA Practices• 12:00 am Lunch Break• 1:30 pm Module 4: Key AAI Activities

4.1 Interviews4.2 Records Review4.3 Visual Inspections4.4 Reporting

• 2:45 pm Break• 3:00 pm Group Exercise: Example Phase I ESA Report• 3:45 pm Module 5: Key Differences of AAI and ASTM• 4:15 pm State Requirements for 389 Rule• 4:30 pm Q&A and Course Evaluation• 5:00 pm Adjourn

January 2007 4

What is AAI?What is AAI?

• All Appropriate Inquiries, environmental site assessment (ESA) standards, or environmental due diligence, is the process of evaluating a property for potential environmental contamination and assessing potential liability for any contamination present at the property.

January 2007 5

AAI in PerspectiveAAI in Perspective

• All Appropriate Inquiries often is the first step in a continuum of property investigations.

AAIPhase II / Sampling and AnalysisAdditional site characterization

• Investigate potential environmental conditions or problems at a property so that contamination can be properly addressed to protect public health and the environment.

January 2007 6

How Does AAI Affect You?How Does AAI Affect You?

• Threshold Criteria for Brownfields Grant ApplicantsAn entity may have to seek protection from CERCLA liability to be eligible for a grant.

• Recipients of Brownfields Assessment GrantsMust conduct assessment in compliance with AAI.

• Liability DeterminationsParties seeking protection from CERCLA liability as bona fide prospective purchasers, contiguous property owners, or innocent landowners must conduct AAI prior to purchasing property.

• Targeted Brownfields Assessment (TBA)In most cases, TBAs should be performed in compliance with AAI (or American Society for Testing and Materials [ASTM] E1527-05) to ensure prospective property owner’s liability protection and ensure eligibility for future cleanup grant.

January 2007 7

Objectives of TrainingObjectives of Training

• Familiarize EPA, state, and local partners and grantees with AAI requirements

• Provide overview of the CERCLA liability defenses

• Provide overview of how AAI impacts Brownfield's grant process

• Provide overview of technical requirements of what constitutes an AAI-compliant ESA and what is good practice within the industry

January 2007 8

Module 1: Background of the AAI RuleModule 1: Background of the AAI Rule

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1 Background of the AAI RuleBackground of the AAI Rule

January 2007 9

Module 1: Background of the AAI RuleModule 1: Background of the AAI Rule

• 2002 Small Business Liability Relief and Brownfields Revitalization Act (“Brownfields Amendments”)

• Continuing Obligations

• Brownfields Grants

• AAI Rulemaking Process

• Effective Date and Standards

• Why Comply with AAI Rule?

January 2007 10

• Requires EPA to develop regulations establishing standards and practices for conducting AAI.

• Lists 10 criteria EPA must include in the AAI regulation.

• Establishes interim standard.

• Establishes who is subject to AAI.

Brownfields AmendmentsBrownfields Amendments

January 2007 11

• Applicability of the AAI RuleParties who potentially may claim protection from CERCLA as:

Innocent property owners;Contiguous property owners; or Bona fide prospective purchasers.

Parties who need to establish protection from CERCLA liability to be eligible for site-specific assessment grants and direct cleanup grants under EPA’s Brownfields Program.Parties receiving Brownfields assessment grants.

Brownfields Amendments, cont.Brownfields Amendments, cont.

January 2007 12


• Innocent Landowner DefensePart of CERCLA since 1986 SARA AmendmentsProperty owner “did not know and had no reason to know”of contamination at time of acquisition.Conditions:

Conduct AAI prior to acquiring the propertyComply with continuing obligations after purchase

January 2007 13


• Contiguous Property OwnerPart of 2002 Brownfields AmendmentsOwner of property that is or may be contaminated from property owned by someone else Similar to EPA’s previous contaminated aquifer enforcement discretion policyConditions:

Did not cause, contribute, or consent to the contaminationNot affiliated with any potentially liable partyConduct AAI prior to acquiring the propertyComply with continuing obligations after purchase

January 2007 14


• Bona Fide Prospective PurchaserFor the first time since the enactment of CERCLA in 1980, a person may purchase property with the knowledge that the property is contaminated, without being held potentially liable for the cleanup of the contamination.Conditions:

Acquires ownership after January 11, 2002No disposal or waste management activities on property after property is acquiredNot affiliated with responsible partyConduct AAI prior to acquiring the propertyComply with continuing obligations after purchase

January 2007 15

Statutory Requirements for CERCLA Statutory Requirements for CERCLA Liability ProtectionsLiability Protections

• Threshold Criteria:Purchaser is not a responsible party and not affiliated with a responsible party.Conduct All Appropriate Inquiries prior to purchase.

• Continuing Obligations – after purchase

January 2007 16

Continuing Obligations Continuing Obligations

• Required following acquisitionComply with land use restrictionsDo not impede effectiveness or integrity of institutional controlsTake “reasonable steps” to stop on-going releasesPrevent or limit human and environmental exposure to any previous releasesProvide cooperation, assistance and accessComply with CERCLA information requests and subpoenas

January 2007 17

Brownfields Grants Brownfields Grants -- ApplicantsApplicants

• Brownfields grant applicants are prohibited from using grant money to pay for a response cost for which the recipient of the grant is potentially liable under CERCLA section 107.

• Therefore, grant applicants must demonstrate they are not liable for contamination to be addressed by grant.

Acquired property involuntarily (CERCLA 101(29)(D))Acquired property by eminent domain (CERCLA 101(35)(A)(ii))Are a bona fide prospective purchaserMeet requirements for BFPP, but purchased property prior to January 11, 2002

January 2007 18

Brownfields Grants Brownfields Grants -- ApplicantsApplicants

• Grant applicants (any other parties) who acquire property involuntarily or by eminent domain do NOT have to conduct AAI prior to acquisition.

• Grant applicants (and other prospective purchasers) asserting liability protection as BFPP must conduct AAI prior to acquiring the property.

January 2007 19

Brownfields Grants Brownfields Grants -- RecipientsRecipients

• Brownfields Assessment GrantsParties who receive grants under EPA’s Brownfields program to perform site characterization and assessment of brownfields must conduct such activities in compliance with the standards and practices established by EPA for the conduct of all appropriate inquiries. (CERCLA section 104(k)(2)(B)(ii))

January 2007 20

Grants to States and TribesGrants to States and Tribes

• Grants provided to States and Tribes under the authority of CERCLA 128(a) are not subject to the prohibitions of CERCLA 104(k).

• Therefore, brownfields assessments conducted by states or tribes using 128(a) funding DO NOT have to be conducted in compliance with AAI.

• It may be prudent to conduct such assessments in compliance with AAI to ensure property owner’s ability to assert protection from CERCLA liability and ensure property owner’s eligibility for future brownfields cleanup grants.

January 2007 21

Brownfields Amendmentssigned in Jan. 2002

Negotiated Rulemaking Committeearrived at consensus in Nov. 2003

AAI Rulemaking ProcessAAI Rulemaking Process

Proposed AAI Rule published on Aug. 26, 2004

2002 2003 2004 2005 2006

Three-month Public Comment Period

ended on Nov. 30, 2004

Final AAI Rule published on Nov. 1, 2005

Final AAI Rulebecame effective on Nov. 1, 2006

January 2007 22

Effective Date and StandardsEffective Date and Standards

• The effective date for the final rule is November 1, 2006, one year after publication in the Federal Register.

• Until November 1, 2006, either the final regulation (or ASTM E1527-05) or the interim standard (ASTM E1527-00 or E1527-97) could have been used to satisfy the statutory requirements for conducting all appropriate inquiries.

• After November 1, 2006, parties must follow the provisions of the final rule or the ASTM E1527-05 standard.

January 2007 23

Effective Date and Standards, cont.Effective Date and Standards, cont.

• ASTM E1527-05 Referenced in the AAI rule as consistent and compliant with the regulatory standard Similar to ASTM E1527-00

Same type of activities performedScope for some activities expanded

• Parties cannot use ASTM Transaction Screen standard or ASTM Phase II ESA standard as a substitute for the Phase I ESA standard to comply with the AAI rule

January 2007 24

AAIAAI ---- Final RegulationFinal Regulation

• Published in Federal Register on November 1, 2005

70 FR 66070

• 40 CFR Part 312

January 2007 25

Why Comply with the AAI Rule? Why Comply with the AAI Rule?

• Required for many EPA Brownfields Grant recipients

• Required if seeking to assert certain liability protections under CERCLA

• To understand potential environmental risks/liabilities associated with a property prior to: purchase, sale, lease, joint venture, purchase of insurance, financing

• Gain information that will help property owner comply with “continuing obligations” after purchase

January 2007 26

Module 2: AAI Regulatory RequirementsModule 2: AAI Regulatory Requirements

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2 AAI Regulatory RequirementsAAI Regulatory Requirements

January 2007 27

When Must AAI be Performed ?When Must AAI be Performed ?

• Any party seeking liability protection as a bona fide prospective purchaser (including eligible Brownfields grantees), contiguous property owner, or innocent landowner must perform all appropriate inquiries beforeacquiring the property (title transfer).

• All appropriate inquiries must be conducted or updated within one year prior to date of acquisition.

• Interviews, records review, site inspection, and lien search must be conducted or updated within 180 days prior to the date of acquisition.

January 2007 28

Who Can Perform AAI?Who Can Perform AAI?

• Person who supervises or oversees the conduct of AAI must meet the definition of Environmental Professional (EP)

• Person who does not qualify as an EP may assist in the conduct of a AAI if he or she is under the supervision or responsible charge of an EP

January 2007 29

Definition of Environmental ProfessionalDefinition of Environmental Professional

• Person who has: (1) sufficient specific education, training, and

experience to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases of hazardous substances; AND

January 2007 30

Definition of Environmental Professional, cont.Definition of Environmental Professional, cont.

(2a) Holds a professional engineer or professionalgeologist license, or other state, federal, or tribalcertification or environmental professional licenseand has 3 years of relevant full-time experience;OR

(2b) Has a degree in science or engineering and 5 yearsof relevant full-time experience; OR

(2c) Has 10 years of relevant full-time experience.

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• Relevant Experience:Participation in the performance of all appropriate inquiries investigations, environmental site assessments, or other site investigations that may include environmental analyses, investigations, and remediation which involve the understanding of surface and subsurface environmental conditions and the processes used to evaluate these conditions

January 2007 32


• What is new under the AAI standard (and ASTM E1527-05)?

Specific certification, licensing, education, and relevant full-time experience is required to qualify as an EP

January 2007 33

Objectives and Performance FactorsObjectives and Performance Factors

• Identify conditions indicative of releases or threatened releases of hazardous substances

• Identify particular information:Uses and occupancies of propertyUses of hazardous substancesWaste management activitiesCorrective actions and response activitiesInstitutional and engineering controlsNearby and adjoining properties with environmental conditions

January 2007 34

Objectives and Performance Factors, cont.Objectives and Performance Factors, cont.

• Gather information required to meet standards that is:

Publicly available,Obtainable within reasonable time and cost constraints, andCan be practically reviewed.

• Review and evaluate thoroughness and reliability of information gathered

January 2007 35

Contaminants of ConcernContaminants of Concern

• Parties seeking CERCLA defense:Releases and threatened releases of CERCLA hazardous substances

• EPA Brownfields Grant recipients - potential additional contaminants (if included in scope of cooperative agreement):

Releases and threatened releases of:CERCLA hazardous substances, pollutants or contaminants,Petroleum and petroleum products, Controlled substances (e.g., meth lab wastes), andMine-scarred land wastes

January 2007 36

Contaminants of Concern, cont.Contaminants of Concern, cont.


Petroleum and petroleum products do not need to be included in the scope of every ESA

January 2007 37

Key AAI Activities Key AAI Activities

• Interviews with past and present owners, operators, and occupants

• Reviews of historical sources of information

• Reviews of federal, state, tribal, and local governmentrecords

• Reviews of activity and use limitations

• Visual inspections of the facility and of adjoining properties

January 2007 38

Retention of Previous AAI Requirements Retention of Previous AAI Requirements (SARA)(SARA)

• AAI rule retains four requirements from previous innocent landowner provisions (1986 SARA amendments):1) Relationship between purchase price vs. value of

property, if not contaminated (312.29);2) Specialized knowledge (312.28); 3) Commonly known and reasonably ascertainable

information (312.30);4) Degree of obviousness and ability to detect

• AAI regulation does not require that any information collected or held by the user be provided to the EP

January 2007 39

User ResponsibilitiesUser Responsibilities

• User responsible for:Relationship between purchase price vs. value of property, if not contaminated;Specialized knowledge; Collection of commonly known and reasonably ascertainable information (shared with EP)

• AAI rule does not provide definition of “user”

• ASTM defines “user” as: “party seeking to use Practice E 1527 to complete an environmental site assessment of the property. A user may include, without limitation, a potential purchaser of property, a potential tenant of property, an owner of property, a lender, or a property manager.”

• ASTM provides a user questionnaire

January 2007 40

• User/prospective property owner must consider:Does purchase price reasonably reflect the fair market value, if the property were not contaminated?

• If price does not reflect fair market value:Is the price differential due to presence of releases or threatened releases?

• Formal real estate appraisal is not required under AAI

1. Relationship of the Purchase Price to the 1. Relationship of the Purchase Price to the Value of the PropertyValue of the Property

January 2007 41

2. Specialized Knowledge or Experience 2. Specialized Knowledge or Experience

• Purchasers and persons conducting AAI must take into account their specialized knowledge of:

Subject propertyArea surrounding propertyConditions of adjoining properties; andAny other experience relevant to the inquiry

January 2007 42

• User/prospective property owner must consider information that is commonly known or reasonably ascertainable within the local community

Information about releases or threatened releases that are incidental to the info obtained during the EP’s inquiryCurrent owners/occupants of neighboring/adjacent propertiesLocal or state government officialsOthers with knowledge of the propertyOther sources (newspapers, Web sites, libraries, etc.)

3. Commonly Known or Reasonably3. Commonly Known or ReasonablyAscertainable Information about the PropertyAscertainable Information about the Property

January 2007 43

4. Degree of Obviousness of the Presence or 4. Degree of Obviousness of the Presence or Likely Presence of ContaminationLikely Presence of Contamination

• Persons conducting AAI must take into account all information collected and consider:

the degree of obviousness of the presence or potential presence of releases or threatened releases at subject property, andwhether or not an obvious conclusion can be drawn about a release or threatened release

• Inquiry of the environmental professional should include an opinion regarding additional appropriate investigation, if any

• AAI does not require sampling and analysis to document likelihood of the presence of contamination

January 2007 44

Module 3: Overview of ESA PracticesModule 3: Overview of ESA Practices

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3 Overview of ESA PracticesOverview of ESA Practices

January 2007 45

Graphic Showing Hydrologic Cycle, Graphic Showing Hydrologic Cycle, Contaminant Sources, ReceptorsContaminant Sources, Receptors

January 2007 46

Types and Uses of Environmental Types and Uses of Environmental AssessmentsAssessments

• Transaction Screen

• Phase I ESA

• Phase II ESA

• Feasibility Studies

• Remedy Documents

January 2007 47

Transaction ScreenTransaction Screen

• Less comprehensive in scope than Phase I ESA

• Used on properties where a prospective buyer has reason to believe that no adverse environmental conditions exist at the site

January 2007 48

Phase I ESAPhase I ESA

• Initial assessment of a site

• Identify potential presence of environmental contamination

• AKA: Environmental due diligence and “all appropriate inquiries”

• Real estate transactions, site discovery, CERCLA liability protection, and Brownfields grants

• Does not delineate contamination or quantify risk

January 2007 49

Phase I ESAPhase I ESA

• Not exclusively driven by a need to qualify for CERCLA liability protections

• Approximately 45 percent of ESAs are conducted to assess business environmental risk concerns

• The most commonly used process - ASTM standard entitled “Standard Practice for Environmental Site Assessment: Phase I Environmental Site Assessment Process” (E1527-97, 00, 05)

• Approximately 0.25 million Phase I ESAs are performed every year

January 2007 50

Phase I ESA Phase I ESA -- NonNon--Scope ConsiderationsScope Considerations

• Asbestos

• Radon

• Lead-based paints

• Wetlands

• Regulatory compliance

• Cultural and historic resources

• Air emissions

• Industrial hygiene

• Heath and safety

• Ecological resources

• Endangered species

• Indoor air quality

• Biological agents

• Mold

• Noise

January 2007 51

Phase II ESAPhase II ESA

• Sampling of various media – soil, ground water, sediment, surface water

• Chemical analysis to quantify types and magnitude of contaminants

• Define the nature and extent of contamination

• Quantify risk to receptors

• Comparison to relevant criteria to determine need for cleanup or risk management

January 2007 52

Other Types of ESAsOther Types of ESAs

• Feasibility Studies: Develop RAOs, ARARs, remedial alternatives evaluation. Additional sampling and analysis to support remedy alternatives development or treatability study

• Remedy Documents: Corrective Actions, Interim Removal Actions, Record of Decision - present approach to implementing remedies and results of remedial actions

January 2007 53

Common Contaminants/SourcesCommon Contaminants/Sources

HerbicidesChlorophenoxy Compounds; 2;4- Dichlorophenoxyacetic AcidElectrical Transformers Polychlorinated Biphenyls (PCBs)

Organophosphate: Diazanon; Dichlorovos; Malathion; Parathion; Carbamate: Aldicarb

Cyclodienes (Aldrin; Chlordane; Dieldrin; Endrin); Chlorocyclohexanes

PesticidesChlorinated Ethanes; DDT; LindaneCombustionPAHs; PCDDs/PCDFs; Particulates, Metals

Acetone; Carbon Tetrachloride; Chloroform; Bromoethane; Ethylene Dibromide; Methylene Chloride; Tetrachloroethane;

Tetrachloroethene; Trichloroethene; Vinyl Chloride

Commercial Solvents

Benzene; Ethylbenzene; Toluene; XyleneDry Cleaning Trichloroethane, Trichloroethene, Tetrachloroethene

Petroleum/FuelsBenzene; Ethylbenzene; Toluene; Xylene; MTBE; PAHs

Common SourcesContaminants

January 2007 54

Module 4: Key AAI ActivitiesModule 4: Key AAI Activities

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4 Key AAI ActivitiesKey AAI Activities

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Key AAI Activities Key AAI Activities

1.) Interviews with past and present owners, operators, and occupants

2.) Reviews of historical sources of information and federal, state, tribal, and local government records

3.) Visual inspections of the facility and of adjoining properties

4.) Written report

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4.1 InterviewsInterviews

January 2007 57

InterviewsInterviews –– Subject PropertySubject Property

• AAI regulation requires interviews of:Current owner(s)/occupant(s) (312.23(a),(b))

Major occupantsOccupants likely to use, store, treat, handle, or dispose of hazardous substances

Additional parties, as necessary to achieve objectives and performance factors, including one or more of following (312.23(c)):

Current and past facility managers, owners, operators or occupants of the subject property Employees of past and current occupants of the subject property

January 2007 58

InterviewsInterviews -- Abandoned PropertiesAbandoned Properties

• AAI regulation requires:Interviewing owners or occupants of neighboring or nearby properties, if the subject property is abandoned (312.23(d))Abandoned property = “Property that can be presumed to be deserted, or an intent to relinquish possession or control can be inferred from the general disrepair or lack of activity there on such that a reasonable person could believe that there was an intent on the part of the current owner to surrender rights to the property.” (312.10(b))

January 2007 59

InterviewsInterviews


Interviews with past owner and occupants Interviews with neighboring property owners, ifproperty is abandoned

January 2007 60

Interview MethodsInterview Methods

• How?In person, telephone, or in writingChecklist, questionnaire, protocol

• When?Before, during, or after site visit Usually done in conjunction with site visit

January 2007 61

Common Interview SourcesCommon Interview Sources

• Facility owner

• Facility occupants

• Facility/property manager

• EHS manager

• Facility employees familiar with operations/processes

• Human resources employees

• Financial manager

• Attorneys

January 2007 62

Common Interview QuestionsCommon Interview Questions

• Have investigations/remedial actions occurred?

• What permits do you have and have there been violations?

• Have any known spills/releases occurred?

• Has site been subject to any EH&S regulatory action?

• Has site been subject to any EH&S complaints or lawsuits?

• Are there any active/abandoned septic systems?

• Are there any wells at the site? Use?

• Does the property have any ASTs or USTs? How many? Ages?

• Where does stormwater discharge to?

• Does facility discharge air pollutants? Have air pollution controls?

January 2007 63

InterviewsInterviews –– State/Local GovernmentState/Local Government

• Gather information of environmental conditions on the site and surrounding property

• Interview sourcesFire departmentHealth agency/Boards of HealthAgencies with jurisdiction over hazardous waste disposal and other environmental conditionsAgencies responsible for issuing building permits, water use permits, well permits (Building Departments, Water Department, Engineering Department)

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4.2 Records ReviewRecords Review

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Records ReviewRecords Review

• AAI regulation requires review of:Historical documents and records (312.24(a))Federal, state, tribal, and local government records ordata bases of government records for the subject and nearby or adjoining properties (312.26(b),(c))

January 2007 66

Review of Historical Sources of InformationReview of Historical Sources of Information

• Review must cover a period of time as far back as:When property first contained structuresFirst used for residential, agricultural, commercial, industrial, and governmental purposes (312.24(b))

January 2007 67

Review of Historical Sources of Information, cont.Review of Historical Sources of Information, cont.

• What is new under the AAI standard?It is no longer necessary to review historical sources as far back as 1940, unless the property’s first obvious developed use preceded that dateASTM, however, specifies that search must be back to properties first developed use, or back to 1940, whichever is earlier.

January 2007 68

Common Historical SourcesCommon Historical Sources

• Sources may include, but are not limited to:Aerial photographsFire insurance mapsUSGS topographic mapsLocal street directoriesBuilding department recordsChain of title documentsProperty tax recordsZoning/land use records

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Aerial PhotographsAerial Photographs

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Aerial PhotographsAerial Photographs

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Fire Insurance MapsFire Insurance Maps

January 2007 72

Topographic MapsTopographic Maps

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Other Historical SourcesOther Historical Sources

• OthersNewspaper archivesInternet sitesCommunity organizationsLocal librariesHistorical societiesMiscellaneous maps

January 2007 74

Government Records Review Government Records Review

• AAI requires review of federal, state, and local government records (or databases containing government records) for

Subject property (312.26(b))Nearby and adjoining properties (312.26(c)(1,2))

• Review tribal records if property is located on or near tribal-owned lands

January 2007 75

Government Records Review, cont. Government Records Review, cont.


Review of local government records/sources is no longer optional Review of tribal records is mandatory for properties located on or near tribal-owned lands

January 2007 76

Government Records Review Government Records Review -- Federal/State/TribalFederal/State/Tribal

January 2007 77

EnvironmentalEnvironmentalDatabaseDatabaseSearchSearchResultsResults

January 2007 78

Records Review Records Review -- OthersOthers• Facility/property plot plan or map• Description of operations• Site assessment, remediation, and groundwater monitoring reports• Compliance audit reports• Permits/permit applications (solid waste, hazardous waste, wastewater, NPDES, well)• UST and AST inventory• Chemical inventory/MSDS• Spill/release inventory• Air emission and wastewater discharge monitoring data• Transformer inventory• Inspection/enforcement correspondence (NOVs, consent decrees)• Community right-to-know plans• Preparedness and prevention plans • Spill prevention, countermeasure, and control plans• Legal correspondence/litigation associated with hazardous substances/petroleum

products

January 2007 79

Records Review Records Review –– OthersOthers

January 2007 80

Search for Environmental Cleanup LiensSearch for Environmental Cleanup Liens

• AAI regulation requires search for environmental cleanup liens against the subject property that are filed or recorded under federal, tribal, state, or local law (312.25(a))

Recorded land title records – record of historical fee ownership which may include leases, land contracts, activity and use limitations Usually at municipal or county recorder or clerkObtained by title companies or local government agency

January 2007 81

Search for Environmental Cleanup Liens, cont. Search for Environmental Cleanup Liens, cont.


No requirement as to who is responsible for performing the search

January 2007 82

Search for Environmental Cleanup Liens, cont.Search for Environmental Cleanup Liens, cont.

• User may provide this information to the EP

• EP is not required to perform the search

• Good practice for EP to document the results of search (if provided by user)

• EP may document as data gap if no search results are received from the property owner

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4.3 Visual InspectionsVisual Inspections

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Visual InspectionsVisual Inspections

• AAI regulation requires the inquiry of the EP to include:Visual on-site inspection of the subject property and facilities (312.27(a)(1))Visual inspection of adjoining properties from nearest vantage point (312.27(a)(2))

• AAI provides for a limited exemption to conduct the on-site visual inspection (312.27(c)(1)-(3))

• EPA recommends that the EP perform the visual inspection

January 2007 85

Visual Inspections, cont.Visual Inspections, cont.

• What is new under the AAI standard ?Prospective property owner can qualify for a limited exemption for “on-site” visual inspection of the subject propertyVisual inspection of adjoining properties is no longer optional

January 2007 86

Visual Inspections, cont.Visual Inspections, cont.

• Subject property inspection:On-site

• Adjoining property inspection from:Subject propertyPublic rights-of-wayAerial photographs

• Limitations must be noted:snow-covered ground surface limited access to certain areas of sitesafety concerns

January 2007 87

Visual Inspection Visual Inspection -- ExceptionsExceptions

• If on-site inspection cannot be performed due to unusual circumstances (physical limitations, remote/inaccessible location), the inquiry must:

Visually inspect property via alternative method (aerial photo, fenceline observation) Document all efforts taken to obtain access and why efforts were unsuccessfulDocument other sources of information that were consulted to assess releases or threatened releasesComment by EP on significance of the failure to conduct a visual on-site inspection

• Mere refusal of a voluntary seller to provide access does not constitute an unusual circumstance.

January 2007 88

Visual Inspections Visual Inspections –– General Site SettingGeneral Site Setting

• Current uses of property• Past uses of property• Current and past uses of adjoining

properties• Current and past uses of surrounding

area• Geologic, hydrogeologic, hydrologic, and

topographic conditions• Description of structures• Roads• Potable water supply• Sewage disposal system

January 2007 89

Visual Inspections Visual Inspections –– Interior and ExteriorInterior and Exterior

• Hazardous substances and petroleum products

• Storage tanks, drums, containers• Odors• Pools of liquid• PCBs• Heating/cooling – fuel sources• Stains and corrosion• Drains and sumps• Solid waste & waste water treatment• Septic systems, pits, ponds, and lagoons• Wells (dry, injection, public supply,

monitoring, abandoned)

January 2007 90

Visual Inspections Visual Inspections –– Other ObservationsOther Observations

• Topography – surface, slope, evidence of filling, remedial activities

• Condition of ground surface/pavement

• New gravel or paved areas

• Soil staining, stressed vegetation

• Discolored water

• Nearest water body

• Discharge of storm water runoff

• Proximity to sensitive receptors (wetlands, wildlife refuge, etc.)

• Proximity to residential/heavily populated areas, schools, etc.

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4.4 ReportingReporting

January 2007 96

Written ReportWritten Report

• AAI regulation requires results of the inquiry to be documented in a written report (312.21(c))

• Written report must include, at a minimum: EP’s opinion as to whether the inquiry has identified conditions indicative of releases or threatened releases of hazardous substances (312.21(c)(1))Identification of data gaps (312.21(c)(2))Qualifications of the EP (312.21(c)(3) and 312.21(d))

Declaration that person(s) signing meets definition of EPDeclaration that AAI was developed and performed in conformance with the standards and practices set forth in 40 CFR Part 312

Signature of the EP (312.21(d))

January 2007 97

Shelf Life of AAI ActivitiesShelf Life of AAI Activities

• One year, with updates required after 180 days for the following activities:

interviewsvisual inspection of the subject propertyhistorical records review search for recorded environmental cleanup liens

• “Date” of inquiry is the date(s) on which activities were performed, not the report date

January 2007 98


• AAI regulation does not recommend format, structure, or length

• ASTM 1527-05 recommended formatSummaryIntroductionSite DescriptionUser Provided InformationRecords ReviewSite ReconnaissanceInterviewsFindings

January 2007 99


• ASTM 1527-05 recommended format, con’t.Opinion

Whether inquiry has identified conditions indicative of releases or threatened releasesAdditional appropriate investigations

ConclusionsSpecific statement regarding evidence of recognized environmental conditions

DeviationsAdditional ServicesReferencesSignature of EPQualifications of EPAppendices

January 2007 100

Data GapsData Gaps

• “A lack of or inability to obtain information required by this practice despite good faith efforts by the EP to gather such information”

• EP must identify and document data gaps that affect his/her ability to identify conditions indicative of releases or threatened releases

• EP must comment on significance of data gaps

• Sampling and analysis may be used to address data gaps, but is not required under AAI

January 2007 101

Data Gaps, cont. Data Gaps, cont.


Documentation of data gaps is no longer discretionary

January 2007 102

Data Gaps, cont. Data Gaps, cont.

• Common data gaps:Unknown site usage during certain time periodsInability to conduct visual inspectionInability to interview the key site manager, regulatory officials, etc.Data from previous site investigation not available for review

January 2007 103

Exercise:Exercise:Phase I ESA ReportsPhase I ESA Reports

Review the example Phase I ESA report and Review the example Phase I ESA report and discuss the following:discuss the following:

Is the report compliant with the AAI standard?

What are the deficiencies?

What makes the report a “good” report?

Is there any additional information you would like to see in the report?

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Example Report Example Report –– AAI DeficienciesAAI Deficiencies

• No EP signature

• No declaration of EP qualifications

• No declaration of conformance with AAI standard

• No discussion of data gaps Site history data gap

• Expired shelf life (> 1 year old)

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Example Report Example Report –– Other DeficienciesOther Deficiencies

• No past owner interviews to address data gaps

• No aerial photos, Sanborn maps, site photos

• No search for cleanup liens or institutional controls

• No discussion of purchase price

• No executive summary

• Limited attempt to review local records

• No user-provided information

• No references

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Example Report Example Report –– What was Good?What was Good?

• Non-scope considerations:AsbestosLead-paintRadioactive materialsIndustrial hygiene surveys

• Explanation of site operations and process

• Site map

• Liability assessment – costs associated with recommended management options

• Discussion of general EHS management operations

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Module 5: Differences of AAI and ASTMModule 5: Differences of AAI and ASTM

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5Differences of AAI and ASTMDifferences of AAI and ASTM

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• Discretionary• Mandatory at abandoned properties

Interview with Neighboring or Nearby Property Owner and Occupants

• Not required• Must be conducted as necessary to achieve objectives and performance factors

Interview with Past Owner and Occupants

• A reasonable attempt must be made to interview key site manager and reasonable number of occupants

• MandatoryInterview with Current Owner and Occupants of Subject Property

• No specific certification/license, education, and experience requirements

• Applies to all individuals conducting AAI

• Specific certification/license, education, and experience requirements

• Applies only to individuals supervising AAI

Definition of EP

ASTM E1527-00AAIKey Difference

Key Differences of AAI and ASTM E1527Key Differences of AAI and ASTM E1527--0000

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Key Differences of AAI and ASTM E1527Key Differences of AAI and ASTM E1527--00 con00 con’’t.t.

• Federal and state records

• Local records/sources at discretion of EP

• Federal, state, tribal, and local records

Government Records Search

• User’s responsibility

• Search results must be reported to EP

• Scope of cleanup lien search is limited to reasonably ascertainable land title records

• No requirement as to who is responsible for the search

• Scope of cleanup lien search includes those filed or recorded under federal, state, tribal, or local law

Search for Environmental Cleanup Liens

• All obvious uses from the present back to the properties first obvious developed use or 1940, whichever is earlier (retained by ASTM 1527-05)

• From present back to when property first contained structures or was first used for residential, agricultural, commercial, industrial, or governmental purposes

Review of Historical Sources


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• Generally discretionary

• Sources that revealed no findings must be documented

• Requires identification of sources consulted to address data gaps and comments on significance of data gap with regard to the ability of the EP to identify conditions indicative of releases and threatened releases

Data Gaps

• Updates of specific activities recommended after 180 days

• One year, with some updates required after 180 days

Shelf Life of Written Report

• Visual inspection of subject property required - no exemptions

• No specific requirement to inspect adjoining properties; only to report anything actually observed

• Visual inspection of subject property and adjoining property required

• Limited exemption with specific requirements if the subject property cannot be visually inspected

Visual Inspection


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• CERCLA hazardous substances and petroleum products

Parties seeking CERCLA defense:

• CERCLA hazardous substances

EPA Brownfields Grant recipients:

• CERCLA hazardous substances, pollutants or contaminants

• petroleum/petroleum products

• controlled substances

Contaminants of Concern

• Innocent landowner defense • Innocent landowner defense

• Bona fide prospective purchaser defense

• Contiguous property owner defense

CERCLA Defenses


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AAI in CaliforniaAAI in California

• Threshold criteria for determining eligibility to enter into a CLRRA agreement with either DTSC or a Water Board.

• Standard for Phase 1 site assessment review process under DTSC oversight for new and expanding schools (new emergency regulation effective 11/27/2006).

• Recipients of Targeted Site Investigation program grants funded through the State Response Program grant are not required must meet the AAI standard but may choose do so in order to assert protection under federal law.

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State Requirements for CLRRA (AB 389)State Requirements for CLRRA (AB 389)

• Qualifying property owners must have made all appropriate inquiries at the time of purchase as follows:

Bona Fide Purchasers: must have made all appropriate inquiries on or before the time of acquisition based on the ASTM standard in effect at the time.Contiguous Property Owners: must have made all appropriate inquiries at the time of purchase and did not know or have a reason to know of a release or threatened release.Innocent Land Owners: must have made all appropriate inquiries at the time of purchase and did not know or have a reason to know of a release or threatened release.

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Useful Resources/LinksUseful Resources/Links

EPA Brownfields Cleanup and Redevelopment – AAI: http://www.epa.gov/brownfields/regneg.htm

EPA Terms of Environment: http://www.epa.gov/OCEPAterms/On-line list of commonly used terms and acronyms

EPA Clu-In: http://clu-in.org/Hazardous Waste Clean-up Information

Google Earth: http://earth.google.com/ and TerraServer:http://www.terraserver.microsoft.com/

Online aerial photo database

DTSC Envirostor: http://www.envirostor.dtsc.ca.gov/public/On-line database of hazardous substances release sites in Ca

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Wrap UpWrap Up

• Questions & Answers

• Training Evaluation